Clark v. Byrd

Eldridge, Judge.

Allstate Indemnity Company insured William Nestlehutt with a minimum $15,000 automobile policy when on June 1, 1997, he collided with Louise Clark, causing her serious injuries with over $40,000 in medicals. Clark, the plaintiff, had $100,000 uninsured/ underinsured motorist coverage under her policy with State Auto Property Casualty Jnsurance Company. Clark put her U/M carrier on notice. Wanda Byrd was the claims agent for State Auto. Debra Hinds was the claims agent for Allstate.

Both Hinds and Byrd knew from Clark that the Allstate coverage was limited and that Clark intended to make an underinsured claim against State Auto. Clark asked each agent for advice regarding the insurance coverage of the other’s policy and how to proceed. Clark indicated to Byrd that she wanted to settle both the insurance claim of Allstate and the underinsured claim of State Auto at the same time, but Byrd told Clark that she would have to settle with Allstate first and exhaust all such coverage before State Auto would pay any underinsured coverage. Byrd did not warn Clark that either a limited release or a simultaneous settlement by Allstate was necessary to avoid releasing State Auto and that a general release of Allstate would also release State Auto from all liability on its underin-sured coverage. Hinds did not tell Clark that the general release that she presented to Clark for execution would cause a release of all claims against State Auto upon execution by Clark.

After Clark executed the general release, State Auto denied any liability under the underinsured coverage. Clark sued everyone for fraud and equitable relief. The trial court granted summary judgment for Byrd and State Auto and denied summary judgment as to Allstate, Hinds, and Nestlehutt. Clark appealed, and the other defendants filed their cross-appeals. We reverse the grant of summary judgment as to Byrd and State Auto and reverse as to the denial of summary judgment for the other defendants.

*827 Case No. A01A2422

1. (a) Fraud.

A fiduciary relationship does not exist between an insurer and its insured. “[T]here is no Georgia statute establishing that an accident and liability insurer occupies a fiduciary relationship to its insured. . . . The posture of an insured making a claim against his own insurer does not fall within this definition [of a confidential relationship] but is one of antagonistic interests.” Walsh v. Campbell, 130 Ga. App. 194, 198 (202 SE2d 657) (1973); see also Miles v. Great Southern Life Ins. Co., 197 Ga. App. 540, 541 (1) (398 SE2d 772) (1990).

Thus, Clark had no legal right to rely upon the representations of Byrd as a fiduciary or confidential advisor as the claims agent of State Auto without the exercise of ordinary diligence to determine the truth of the representations made to her that, until she settled with Allstate, she could receive no underinsured benefits from State Auto. The possible misrepresentation was in part what was stated to her by Byrd, but in larger measure what was not revealed was that a general release of Allstate barred liability of State Auto on its under-insured coverage unless the claims were settled simultaneously. Further, Byrd did not reveal that the only safe course would be to execute a limited release which would preserve Clark’s claim against State Auto but release her claim against Allstate.

Fraud or misrepresentations of fact require the plaintiff to prove: (1) that the insurer’s agent made a false representation; (2) that at the time, the agent knew it was false, because the insurer had recently litigated the same issue before this Court; (3) that the representations were made to induce Clark to act to execute a general release or refrain from acting to settle the claims at the same time or executing a limited release; (4) that Clark justifiably relied on the representations; and (5) that Clark was damaged by executing a general release that released State Auto’s underinsured coverage. Watson v. Zurich-American Ins. Co., 221 Ga. App. 4, 5 (1) (470 SE2d 684) (1996); Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 195 (435 SE2d 498) (1993). There were some evidence and reasonable inferences supporting each of these issues of disputed fact.

Clark exercised reasonable diligence regarding reliance upon Byrd’s representations regarding prior settlement with Allstate being necessary, because she carefully read the release presented by Hinds, made specific inquiry of Hinds as to the effect of the general release of Allstate upon her claim against State Auto, and relied upon Hinds’ expertise and apparently objective statements regarding the underinsured claims against State Auto. Allstate was paying out its policy limits and receiving a release for its insured; therefore, a *828jury could find that there no longer existed an adversarial position between Clark and Allstate and that Clark could reasonably rely upon the representations of Hinds regarding the effect of the release upon her claims against State Auto as an impartial and experienced insurance claims agent. Thus, the conflict in what Byrd admitted that she told Clark and what Clark testified that Byrd in fact told her created material issues of fact as to actual fraud for jury determination.

(b) Promissory estoppel.

The fact that Byrd told Clark she had to settle with Allstate before State Auto would pay under the underinsured coverage could be construed by a jury to amount to a promise that induced Clark to make a substantial change of position by executing the general release with Allstate. While State Auto has a complete legal defense of the general release to underinsured coverage, injustice can be avoided only by the enforcement of a promise to pay underinsured benefits. See OCGA § 13-3-44 (a); Insilco Corp. v. First Nat. Bank, 248 Ga. 322 (1) (283 SE2d 262) (1981). The evidence presented by the plaintiff raises issues of fact for jury determination: (1) that Byrd made a promise to settle the underinsured coverage for $85,000 when Clark settled the Allstate claim for policy limits of $15,000; (2) that Byrd should have expected Clark to rely on such promise; (3) that the plaintiff did in fact rely to her detriment on the promise; and (4) that such reliance was reasonable. Mooney v. Mooney, 235 Ga. App. 117, 119 (1) (508 SE2d 766) (1998); see also Owens v. American Refuse Systems, 244 Ga. App. 780, 782 (3) (536 SE2d 782) (2000); Pacrim Assoc. v. Turner Home Entertainment, 235 Ga. App. 761, 766-767 (2) (510 SE2d 52) (1998). Detrimental reliance which causes a substantial change in position will constitute sufficient consideration to support promissory estoppel. Mooney v. Mooney, supra at 119. Thus, the issue of promissory estoppel exists for jury determination as to whether State Auto can escape underinsured coverage by inducing conduct through a promise of settlement that probably would provide a complete defense.

(c) Hinds knew that Clark wanted to preserve her underin-surance claim against State Auto. There is no evidence that either Hinds or Allstate intended that the release used would release State Auto. OCGA § 33-24-41.1. Therefore, to avoid a “gross injustice” to Clark that provides no advantage to Allstate but gives an “unconscionable advantage” to State Auto requires the trial court to consider whether the evidence demonstrates such mutual mistake of law that “if prove [n] clearly, unequivocally, and decisively, would warrant a reformation of the release . . . with respect to its effect on the obligations of State Auto.” Superior Ins. Co. v. Dawkins, 229 Ga. App. 45, 49 (1) (494 SE2d 208) (1997); see also Fulghum v. Kelly, 255 Ga. *829652, 653 (340 SE2d 589) (1986). Thus, the trial court as a matter of equity should reform the release where the evidence of mutual mistake of law showing the intent of the parties has been demonstrated clearly, unequivocally, and decisively as to the mistake. OCGA § 23-2-21; Fulghum v. Kelly, supra at 654.

Case Nos. A01A2423 and A01A2424

2. Superior Ins. Co. v. Dawkins, supra at 49-50, requires that the trial court’s denial of the motions for summary judgment as to Allstate, Hinds, and Nestlehutt be reversed, because the evidence shows that the intent of the parties, i.e., Clark, Allstate, Hinds, and Nestlehutt, when they entered into the settlement and release, was to release the insurer and its insured from further liability. Thus, the release as to them will be given its intended effect. Id. at 49-50; see also Fulghum v. Kelly, supra.

Judgment reversed.

Miller and Phipps, JJ, concur. Ellington, J., concurs in judgment only. Andrews, P. J., Johnson, P. J., and Ruffin, J., concur in part and dissent in part.